UKAD V Miles Normandale Decision
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SR/NADP/86/2019 IN THE MATTER OF PROCEEDINGS BROUGHT UNDER THE ANTI-DOPING RULES OF THE WELSH RUGBY UNION Before: Robert Englehart QC (Chair) Blondel Thompson Professor Gordon McInnes B E T W E E N: UK Anti-Doping Limited Anti-Doping Organisation and Miles Normandale Respondent DECISION OF THE ANTI-DOPING TRIBUNAL INTRODUCTION 1. We were appointed as the Tribunal to determine a charge brought by UK Anti-Doping Limited (“UKAD”) against Miles Normandale who was formerly a semi-professional Welsh Rugby Union player with Cardiff RFC. Mr Normandale admitted the commission of an Anti-Doping Rule Violation but contested the issue of sanction. Accordingly, we held a hearing on 19 June 2019 at which we received evidence and heard submissions on behalf of the parties. UKAD was represented by Phillip Law, and Mr Normandale was represented by Jo Moore. We are grateful to both Mr Law and Ms Moore for their lucid and helpful submissions. We are particularly grateful to Ms Moore for representing Mr Normandale pro bono. THE BACKGROUND 2. Mr Normandale is a young man aged 27 who has played Rugby Union at lock forward as a professional and semi-professional player. Aside from his earnings from Rugby Union, he earns his living as a tattooist. He has had a successful career in Rugby Union, playing for well-known clubs such as Cardiff Blues, Rotherham Titans, and, latterly, Cardiff RFC. On 17 November 2017 during a match for Cardiff RFC against Cross Keys RFC Mr Normandale suffered an injury to an ankle. Initially it was thought that he had sprained the ankle, but by early January 2018 it had become apparent that the injury was much more serious. He required surgery, and on 29 January 2018 he underwent a right ankle arthroscopy and syndesmosis stabilisation. At around this time Mr Normandale’s contract with Cardiff RFC was terminated since he had not been able to play for over six weeks; he received his final payment from Cardiff RFC on 31 January 2018. 3. Mr Normandale was assigned to Southmead University Hospital for post-operative physiotherapy. He made slow progress and remained in pain with his ankle still swollen. However, he made a gradual, if slow, recovery with the metalwork in his ankle being surgically removed on 4 July 2018. Despite some complication by way of infection, Mr Normandale continued to build up his strength with gym sessions some 3-4 times a week. It was in August 2018 that Mr Normandale told us he was contacted out of the blue by Cardiff RFC who enquired if he would be willing to return to playing rugby. Mr Normandale’s evidence was that he had for some months thought his rugby playing days were over, but by August 2018 he was attracted by the idea of returning to semi- professional rugby with Cardiff RFC and did so. He signed a new contract dated 15 August 2018 and returned to training. His first match was against Newport RFC on 15 September 2018. 4. On 20 September 2018 Mr Normandale was subject to a random urine and blood test by a UKAD Doping Control Officer during a Cardiff RFC training session. The urine test was found to be positive for Clomifene, a Prohibited Substance specified under S4 of the WADA Prohibited List as an anti-estrogenic substance. It is a Specified Substance, and it is prohibited at all times, both in and out of competition. Although the blood test gave no positive result, we were told by Professor Cowan in evidence that blood is not regularly tested for Clomifene. Following the positive result, Mr Normandale was sent a Notice of Charge by UKAD on 23 November 2018 and was provisionally suspended. THE CHARGE 5. The Charge alleges an Anti-Doping Rule Violation under Article 2.1 of the Anti-Doping Rules (“ADR”) by reason of the presence of Clomifene in the urine sample provided by Mr Normandale. As mentioned, Clomifene is a Prohibited Substance under the WADA Prohibited List. It has a medical use for the stimulation of ovulation in women, but it has no established clinical indication for men. THE ANTI-DOPING RULE VIOLATION 6. On 20 September 2018 Mr Normandale was undoubtedly subject to the jurisdiction of the Welsh Rugby Union. That body had adopted the ADR and has appointed UKAD to investigate anti-doping cases. There is no dispute about this. Mr Normandale waived his right to have his B sample analysed and admits that he committed an Anti-Doping Rule Violation. We are only concerned with sanction. As the evidence and argument proceeded, it became apparent that there were two questions for us to consider in fixing the appropriate period of ineligibility: (1) Was the ingestion of Clomifene by Mr Normandale “intentional” within the meaning of that word under the ADR? (2) Was there No Significant Fault or Negligence on the part of Mr Normandale? THE WITNESSES 7. Mr Normandale was the principal witness on his own behalf. He explained the background summarised above. He then turned to how he came to ingest Clomifene. He said that he wanted to improve his physique on a trip to Australia during which he intended to propose to his girlfriend, and a friend recommended Clomifene as a way of boosting testosterone. The friend gave him a week’s supply of, he thinks, 50 mg tablets of a brand called Serpafar at the beginning of April. Mr Normandale’s evidence was that he took one 50mg tablet a day for seven days from 9 to 15 April, which was the week before he left for Australia. That was all the Clomifene he ever took. 8. Mr Normandale told us that by this time he thought his rugby playing days were over. He had not played for many months following his ankle injury, his contract with Cardiff RFC had been terminated, and he had decided in consultation with his family no longer to undergo the physical risk of returning to rugby. Rather, he hoped to concentrate his attention on building up what he described as his main occupation, that of a tattooist. In these circumstances he thought that there was no problem over taking what he accepted in cross-examination he did “have an idea” was a drug banned in sport; although he used to talk with his girlfriend about the various supplements he would take, he never mentioned Clomifene to her because he did not want to disclose that he had taken a banned product. 9. When Mr Normandale was contacted by Cardiff RFC in August 2018 about the possibility of returning to rugby, he was sufficiently concerned about having taken Clomifene that he conducted an internet search on the drug. Having typed Clomifene in a Google search, Mr Normandale consulted Wikipedia and some other web sites. He told us that more than one of these sites mentioned that the retention time for Clomifene in a human body was about 11 weeks. He was reassured by this since he had taken the drug several months before. He therefore assumed that there was no problem over his returning to rugby. 10. In addition to Mr Normandale’s own evidence, we heard briefly from a friend, Matt Williams, and from Hayley Dugdale, Mr Normandale’s fiancée. Mr Williams explained how he had met Mr Normandale in a gym in about March 2018. Mr Williams is a qualified strength and conditioning coach employed by a business called The Physio Clinic. Mr Williams devised an exercise programme for Mr Normandale although he was soon due to travel to Australia. Shortly before doing so, Mr Normandale told him that he had taken Clomifene to improve his physique for the holiday. Mr Williams told him that he was “a prat”; he knew that it was a forbidden product. Mr Normandale said he would stop, and indeed on his return was asked by Mr Williams if he was still taking Clomifene to which he said he was not. As for Ms Dugdale, she confirmed that she openly discussed supplements with her fiancé but he had never told her about taking Clomifene. Ms Dugdale also confirmed that around February or March 2018 she had discussed with Mr Normandale about his retiring from rugby. 11. For UKAD there was evidence from two witnesses. Professor Cowan gave thoughtful and balanced oral evidence. In his witness statement Mr Cowan had expressed the opinion that Mr Normandale would have taken Clomifene more recently than he admitted. This opinion was based on calculations founded on a half life of 5 days for the drug. However, bearing in mind the very limited data available for Clomifene and the fact that Mr Normandale had also taken a variety of medicaments for his ankle injury, Professor Cowan went on to say: “I cannot exclude the possibility that the administration occurred as stated by the Athlete”. In cross-examination, Professor Cowan was shown literature discussing a half life of five to seven days; and he fairly noted that any false premise in an exponential calculation could have profound results for the ultimate conclusion. He very fairly said that in his view Mr Normandale’s explanation about when he took the Clomifene was close to a 50/50 possibility of being correct. Nevertheless, he confirmed that he stood by what he had said in his witness statement, and in answer to a question from one of us he expressed the view that he would have expected the drug to have remained in Mr Normandale’s body for about one month after ingestion. 12. The only other witness relied upon by UKAD was Mr Wojek whose evidence was not challenged and was read.